Samantha M v. ADES/SW

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE SAMANTHA M., DIVISION ONE FILED: 12/08/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0007 Appellant, DEPARTMENT A MEMORANDUM DECISION (Not for Publication Ariz.R.P.Juv.Ct. 103(G); ARCAP 28) v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, S.W., H.W, Appellees. Appeal from the Superior Court in Maricopa County Cause No. JD505856 The Honorable Mark Aceto, Judge AFFIRMED Sandra L. Massetto Attorney for Appellant Phoenix Thomas C. Horne, Attorney General by Amanda Holguin, Assistant Attorney General Attorneys for Appellees Mesa I R V I N E, Judge ¶1 court s Samantha order M. severing ( Mother ) her appeals parental from rights to the her juvenile daughters Santana W. and Halo W. (the Daughters ). For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 of Santana was born in August 2006. Mother has a history alcohol participating and in methamphetamine reunification abuse services and through was already the Arizona Department of Economic Security ( ADES ) for one of her other six children. ADES filed a dependency action regarding Santana within weeks of her birth. Santana was originally placed with the paternal grandmother, but she was soon moved to foster care because the grandmother permitted Mother to have unsupervised contact with Santana. In March 2008, Mother gave birth to Halo. A month later, ADES filed a dependency petition as to Halo. ¶3 As part of the reunification process, Mother was required to submit to drug testing. Mother would test substance free for a period of months and then she would go on a binge and test positive for alcohol and/or methamphetamine. On other occasions, Mother failed to appear at the drug-testing center and admits she did not call to offer any explanation. During these binge periods, Child Protective Services was unable to locate Mother. ¶4 In May 2010, less than five months before the severance hearing, Mother was arrested for public intoxication and possessing alcohol in a public park. The arresting officer reported that people were standing around watching Mother s erratic behavior and that Mother had trouble keeping her balance 2 and speaking properly. Two days later, Mother called the police and advised responding them officer that she reported wanted that to Mother commit suicide. admitted to The drinking earlier that morning. ¶5 In June 2010, ADES filed a petition to terminate Mother s parental rights to the Daughters. The juvenile court held a contested severance hearing on ADES s motion to terminate in October 2010. After taking the matter under advisement, the court granted ADES s motion to terminate Mother s parental rights to the Daughters. ¶6 The juvenile court found that termination was in the Daughters best interests and that grounds for severance existed pursuant to Arizona Revised Statutes ( A.R.S. ) § 8-533(B)(3) (2010) because Mother was there unable to was clear and convincing discharge her parental evidence that responsibilities because of a history of chronic abuse of alcohol and dangerous drugs, and there were reasonable grounds to believe that Mother will continue to have a substance-abuse problem for a prolonged indeterminate period. Additionally, the juvenile court found that grounds for severance existed pursuant to A.R.S. § 8-533 (8)(a) and (8)(c) (2010) because the Daughters were being cared for in an out-of-home placement for a total period of fifteen months pursuant to court order, and Mother has been unable to remedy her substance-abuse issues. 3 ¶7 Mother timely appeals. DISCUSSION ¶8 The right to custody of one s children is fundamental, but it is not absolute. Michael J. v. Ariz. Dep t of Econ. Sec., 196 Ariz. 246, 248, ¶¶ 11-12, 995 P.2d 682, 684 (2000). In Arizona, to justify termination of parental rights, a juvenile court must find, by clear and convincing evidence, the existence of at least one statutory basis for termination pursuant to A.R.S. § 8-533. Id. at ¶ 12. The court must also find by a preponderance of the evidence that the termination is in the child s best interest. Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). ¶9 in In reviewing a severance order, we view the evidence the light most favorable to sustaining the order. See Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 106, 876 P.2d 1137, 1141 (1994). [T]he juvenile court was in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings. Pima County Dependency Action No. 93511, 154 Ariz. 543, 546, 744 P.2d 455, 458 (App. 1987). Accordingly, we do not reweigh the evidence but determine only whether there is evidence to sustain the juvenile court s ruling. Maricopa County Juv. Action No. JV-132905, 186 Ariz. 607, 609, 925 P.2d 748, 750 (App. 1996). [W]e will affirm a severance order unless it is 4 clearly erroneous, and we will accept the juvenile court s findings of fact unless no reasonable evidence supports those findings. Jesus M. v. Ariz. Dep t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002). ¶10 Mother argues that her drug and alcohol use does not amount to chronic abuse and that her drug and alcohol use does not render her responsibilities. unable Mother to also discharge argues that her there parental are not reasonable grounds to believe that her drug and alcohol use will continue for a prolonged indeterminate period. Mother does not dispute the juvenile court s finding that severance was in the Daughters best interests. ¶11 We find that reasonable evidence supports the juvenile court s findings. testing, Despite substance-abuse periods of treatment, compliance and with counseling, drug Mother consistently missed appointments and failed to follow through with available services. Mother continued to abuse alcohol and methamphetamine and failed to report for numerous drug tests without explanation. Additionally, Mother went on several binges during the reunification process. Most recently, Mother was arrested for public intoxication less than five months before the severance hearing. ¶12 ADES We also find no support for Mother s argument that failed to make diligent efforts 5 to provide her with appropriate and timely reunification services. ADES offered Mother a substance-abuse assessment, substance-abuse outpatient treatment and evaluations, in-patient parent-aid treatment, services, urinalysis, and psychological visitation. ADES began offering these services to Mother before the Daughters were born and continued to offer these services up until the severance hearing. Mother had approximately three years to demonstrate that she could stop abusing substances, and she was unable to do so. Accordingly, we find no error. ¶13 discretion Mother also argues that the juvenile court abused its in finding that grounds for severance existed pursuant to A.R.S. § 8-533 (8)(a) and (8)(c). Because we affirm the juvenile court s findings under A.R.S. § 8-533(B)(3), we need not address these findings. See Michael J., 196 Ariz. at 249, ¶ 12, 995 P.2d at 685. 6 CONCLUSION ¶14 For the foregoing court s termination of reasons, Mother s we affirm parental rights Daughters. /s/ PATRICK IRVINE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Presiding Judge /s/ DANIEL A. BARKER, Judge 7 the juvenile to the

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